Kapil Singh and Another vs Feda Ali and Others

Ray, J.—The second appeal is preferred by defendants 1 and 2 in a suit for declaration of title and recovery of possession of khata No. 35 having an area of 8 bighas in village Rajaundha.

The plaintiffs'' case is that they were the occupancy raiyats of the holding at a rental of Rs. 17/--under the Dumraon Raj, defendant 3. The Raj, however, settled the land with defendants 1 and 2 in 1937. After the settlement, the said defendants interfered with the plaintiffs'' possession and the disturbance gave rise to a proceeding u/s 144, Cr. P.C., which terminated in favour of the plaintiffs Thereafter defendants 1 and 2 forcibly dispossessed the plaintiffs on 17-10-1988, on the strength of mutation of their names in the Canal Revenue Department.

The plaintiffs impleaded the Dumraon Raj as defendant 3. The suit was resisted by all the defendants by their separate written statements on the grounds that the holding formerly belonged to one Manbodh Koeri who became traceless and the holding was abandoned. That the proprietor thereupon took khas possession thereof u/s 87, Bihar Tenancy Act, which continued till it was settled with defendants 1 and 2 in 1345. A kabuliat was executed, in evidence of the settlement, on 20-10-1937. It is alleged by defendants 1 and 2 that they have been in possession since 1345.

The plaintiffs'' suit was decreed by the Munsif and the lower appellate Court upheld the same. Both the Courts below found concurrently that the plaintiffs have been in possession of the holding as occupancy raiyats for the last 30 years, that is, since 1821 FS, if not earlier. It is also found as a fact that Manbodh Koeri, admittedly the late occupancy tenant of the holding, abandoned it shortly after the final publication of the record of rights which took place in 1911, and that thereafter the lands were settled with, the plaintiffs and were never in khas possession of defendant 3.

It is, however, contended on behalf of the defendants-appellants that the suit falls in the category of one contemplated in Article 3, Schedule 3, Bihar Tenancy Act, and, therefore, it having been filed on 27-10-1941, more than 2 years after the date of dispossession, namely, 17-10-1938, is barred. The schedule obviously refers to suits either by or against the landlord by or against the tenant. The question, therefore, arises whether the present suit is one against the landlord by his raiyat or under raiyat to recover possession of land of which he has been dispossessed by him. The point is covered by a large number of authorities and there seems to be conflict of views on the point. Both parties have relied upon certain decisions in support of their respective contentions.

In Mt. Deorati Kuer v. Dasrath Dubey AIR 1940 Pat. 476 the landlord brought a rent suit against the original tenant, got a decree and in execution thereof purchased the holding and got possession of the holding from the Court on 12-9-1929, thereby dispossessing the original tenant. The dispossession took place on 30-12-1933, and the suit was brought on 18-12-1936. It had been held by the Courts below-that the decree obtained by the landlord was only a money decree, and that dispossession took place as alleged by the plaintiffs, that is, on 30-12-1933, and, not through Court but by sheer act of forcible possession. It was held by Meredith J., Fazl Ali J., (as he then was) concurring, that in dispossessing the plaintiff, the dispossession was not really in the capacity of auction-purchaser of his interest but merely upon the excuse of being an auction-purchaser, and, therefore, the special limitation under Article 3, Schedule 3, Bihar Tenancy Act, would apply. It is obvious on this decision that if the landlord should have dispossessed by taking possession through Court qua auction-purchaser of the right, title and interest of the Judgment-debtor the general law of limitation and not the special law should have applied. This case, in my view, does not support the defendants'' contention in the context of the present case. Here the dispossession was by defendants 1 and 2, the settlees, and not by the landlord himself.

The plaintiffs relied upon a case of this Court, namely, Shyam Sunder Naik v. Gobardhan Kamti AIR 1928 Pat. 218 in which it was held that in order to make the special rule of limitation laid down in Article 3 of sch 3, Bengal Tenancy Act, 1885, applicable, it must be shown that it was the landlord who caused or took part in the dispossession of the tenant. Where, therefore, a landlord institutes a rent suit and, in execution of a decree obtained in that suit, brings the holding to sale, dispossession by the purchaser does not amount to dispossession by the landlord. Sen J., who delivered the judgment in this case, referred to and relied upon two cases, namely, Krishna Chandra v. Satish Chandra AIR 1916 Cal. 883 and Bhadai Sahu v. Manohar Ali AIR 1920 Pat. 735. In the case first referred to it was laid down that it was not the design of the Bengal Tenancy Act to deprive a tenant of the rights that he otherwise possesses against a third person between whom and himself there was no relationship of landlord and tenant. It was only intended to deal with such rights as existed between landlord and tenant. In the latter case, which is of this Court, it was clearly laid down that the Court will not favour the allegation of constructive dispossession in support of a plea that a suit is barred by Article 3, of schedule III to Bengal Tenancy Act, (same as Article 3 Schedule III, Bihar Tenancy Act); it must be shown on clear evidence that the landlord himself was the party who dispossessed the tenant. This case appears to be on all fours with the present case, because in one the dispossessor is the purchaser at a rent sale held at the instance of the landlord while in the other, namely, the case in band, dispossessor is a settlee being the highest bidder at a public auction held by the proprietor. If that circumstance does not make the dispossessor an agent of the landlord, I find no principle upon which the settlee in the present case can be said to be such an agent. In one of the Calcutta cases; namely, Aminuddin Munahi v. Ulfatunnissa 13 C.W.N. 108 it had been laid down that inasmuch as the dispossession of the plaintiffs by the defendants 1st party was brought about as a result of the "action of the landlords (the defendant 2nd party) in obtaining a rent decree, Article 3 of Schedule III, of the Bengal Tenancy Act must apply to the case, and in the last mentioned case there was collusion or instigation on the part of the landlord which brought about the dispossession by the purchaser, and the decision is clearly made to rest on that ground. The correctness of the decision in Aminuddin Munshi v. Ulfatunnissa 13 C.W.N. 108 was doubted in Durgapada Panja v. Bhusan Chandra 21 C.W.N. 373.

In the Special Bench case in Gajadhar Rai v. Ram Charan Gope AIR 1930 Pat. 256 Kulwant Sahay, J., who delivered the judgment of the Court, after reviewing the conflicting decisions of this Court bearing upon the point in question, summarised his decision in the following words:

It follows, therefore, that the weight of authority is clearly in favour of the view that Article 3 of Schedule III, Bengal Tenancy Act, does not apply if the dispossession is by the landlord as an auction-purchaser of the holding.

8a. In Har Dayal Bhagat v. Nathuni Bhagwat AIR 1935 Pat. 372 Mohammad Noor J. observes as follows:

In my opinion, a person who goes on the land armed with a settlement from the landlord and turns out the raiyat and dispossesses him such dispossession is obviously by the landlord. This seems to be the view taken in Bheka Singh v. Nakchhed Singh (97) 24 Cal. 40 and Rakhit Mahanta v. Puddo Bami 9 C.W.N. 54 and in a very recent decision in Abdul Latif and Others Vs. Hamed Gazi and Others, and I respectfully agree with them. I do not think that in order to apply the special limitation it is necessary that dispossession of the raiyat must be by the landlord himself or by his hired servant. If the landlord authorizes a third person by making settlement of the land with him to dispossess a raiyat and that person armed with that settlement dispossesses him, the dispossession is by the landlord.

In Bindeshwari Rai v. Ram Palak Singh AIR 1938 Pat. 181 Agarwala J. following the above quoted observations from the judgment of Mohammad Noor J. in Har Dayal Bhagat v. Nathuni Bhagwat AIR 1935 Pat. 372 held that where the landlord deliberately devised a plan for regaining possession of the land he had bought by dispossessing the plaintiff through the instrumentality of his own servant who was set up as a tenant of the land, it must be held that the suit is governed by the special rule of limitation laid down in Article 3.

In Mt. Deorati Kuer v. Dasrath Dubey AIR 1940 Pat. 476 , above referred to, it was, however, expressed as an obiter by Meredith, J. that the view taken in Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, and in Amiruddin Sarkar Vs. Nisaruddin Sarkar and Others, that dispossession by the landlord as auction-purchaser comes under the provisions of the special law of limitation under Article 3, Schedule 3, Bengal Tenancy Act (was correct?)

Two other cases cited by the respondents, namely, Shiv Saran Rai Vs. Sukhdeo Rai and Others, and Rudra Narain Singh v. Kedar Nath AIR 1937 Pat. 458 do not touch the point at issue. I would, therefore, leave them out of consideration.

Before considering the effect of the various decisions referred to in the previous paragraphs, one thing must be cleared from the way, which is that in this case it is not alleged that the landlord had any hand in the dispossession either by collusion or by instigation or by actually taking part in it. It is also not alleged that the appellants merely made a colourable transaction to be used as a shield against the act of the landlord''s dispossession. What appears plain from the findings of the Courts below in view of the pleadings of the parties, and the evidence, is that the landlord settled the lands with defendants 1 and 2 in course of management of the estate and armed with the title believed to have been conferred upon them, defendants 1 and 2 dispossessed the plaintiff. The landlord in not preferring an appeal against the decree passed by the Munsif in favour of the plaintiffs allowed the decree to be final against him thereby finally dissociating himself from any benefits arising out of the act of dispossession by defendants 1 and 2. The decree of the Munsif has now become final as against the landlord which amounts to a final adjudication as between the landlord and tenant that the tenant has his subsisting right as a raiyat against and under the landlord. In this view of the matter, defendants 1 and 2 will have to stand on their own title. They cannot be allowed to plead the special rule of limitation which if at all, they could plead only as much as the landlord could. If the landlord allows the suit to be defeated once for all and accepts the decision to the effect that the plaintiffs are still his raiyats, it would, in my judgment, be difficult to hold that defendants 1 and 2, claiming, as they did, to stand in the shoes of the landlord, would be allowed to defeat the plaintiffs'' suit on the self same ground.

The decisions referred to above represent the various shades of opinion on the applicability of the special rule of limitation. The most orthodox view is that the dispossession referred to in column 3 of the schedule must have been by the landlord himself. This view has also been extended to cases where the landlord''s hands are discernible in the act of dispossession either through his servant or an agent or through his benamidar or through somebody who acts at his instigation and in collusion with him. The most extreme view is that even if the landlord is most remotely connected with the dispossession, or, in other words, if dispossession can be traceable to some act or other on the part of the landlord such as instituting a suit for rent or settling the land with a third party the dispossession howsoever or whensoever made should be attributable to the landlord for the purpose of the Article. The latter view is illustrated in the cases in which it has been held that even when the landlord puts the holding to sale and either purchases himself and takes possession, or a third person becomes the auction-purchaser and takes possession, the Article still applies. The view that runs directly counter to this last view is based upon an argument that where by the time the dispossession is effected and the tenancy has terminated, it can hardly be said that the dispossession is by the landlord as such and in some cases in support of this contrary view, it has been said that the dispossession is through Court, and, therefore, is not one in contemplation of Article 3 of the Schedule. The cases in which it has been held that dispossession must be by the landlord as such as distinct from the landlord as a purchaser of the right, title and interest of the tenant or of somebody claiming to be his tenant take their stand on the general scope of the Tenancy Act being one as between the landlord and tenant as defined in the preamble of the Act. So far as this Court is concerned, there has been a very strong leaning towards the most orthodox view already stated except an expression of opinion by way of an obiter by Meredith J. in Mt. Deorati Kuer v. Dasrath Dubey AIR 1940 Pat. 476 already noticed. He seems to favour the Calcutta view expressed in Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, where it was held that the special limitation applied even where the landlord took possession as auction-purchaser and it was pointed out that Article 3, Schedule 3 does not provide, even by implication, that dispossession must be by the landlord as such. Meredith, J., after quoting with approval the aforesaid decision and another decision in Amiruddin Sarkar Vs. Nisaruddin Sarkar and Others, of the Calcutta High Court says: "If I may say so, these decisions appear to me to express the correct view." I call this obiter because the learned Judge then says: "In any ease, however, I think that the point does not really arise in the present case, since the finding is that the decree obtained against the original tenant was only a money decree and the tenancy continued."

In my judgment, the true rule can be enunciated if we construe Article 3, Schedule 3, Bihar Tenancy Act, according to the plain and grammatical (meaning of?) words used there:

"Description of Period of Time from which suits. limitation. period begins to run. To recover possession Two years. The date of dispossession," of land claimed by the plaintiff as a raiyat or an under-raiyat.

The key to the solution lies in focussing attention on the words" as a raiyat or an under-raiyat." This must limit the applicability of the Article to suits in which the plaintiff claims to recover possession in his capacity as a raiyat. Therefore, it follows that the defendant in the suit must be one against whom he should claim as a raiyat, or, in other words, the defendant must be his landlord, or, in other words, must be one who should resist the claim for recovery of possession on the ground that the plaintiff is not his raiyat. True in the third column of the Schedule it is not stated "the date of dispossession by the landlord" but it must be-deemed as if it is there in order to give full scope and effect to the words used in column 1, namely, that the claim for possession must be in the capacity of a raiyat. The words "raiyat" and "landlord", in the context of tenancy are co-relative terms. While one claims the tenancy as a raiyat, he claims necessarily against the landlord of the tenancy, or of the lands which he claims to constitute a tenancy. If a landlord dispossesses a tenant on the ground that he is an auction-purchaser of the tenancy at an execution sale, he does not resist the plaintiff''s right on the ground that he is not his raiyat but on the ground that his ''raiyati'' right has been acquired by him and on such acquisition has merged in his superior right as a landlord. The Article, confining its operation to the field covered by the words used therein, interpreted in their plain grammatical sense, must refer to suits in which the cause of action consists of a bundle of facts, namely, that the plaintiff is a raiyat, that his raiyati right subsists as against the defendant in the Suit, that it has been jeopardised by the defendant''s act of dispossession and that nothing else has supervened so as to change the status either of the plaintiff as a raiyat or of the defendant as a landlord. In my view, the Article will never apply to a case in which the plaintiff cannot say to the defendant that "I am-your raiyat." If it were otherwise, then it will amount to changing the general law of limitation in the case of Suits for recovery of raiyati lands as against anybody who comes and squats upon his land and claims it adversely simply because the latter has some sort of sympathy, however remote, for the landlord. I think I am reinforced in this view of mine by a decision of this Court in Kamaldhari Thakur v. Rameshwar Singh 17 C.W.N. 817 in which Chamier C.J. laid down the law in the following words:

It appears to me that if it is shown that the plaintiff raiyat is is fact a tenant of the defendant who dispossessed him, in respect of the land claimed in the suit, then Article 3 applies to the suit.

In the same judgment the learned C.J. referring to certain decisions cited before him said:

It has been held in several cases in the Calcutta High Court that where a landlord buys a raiyat''s holding and as purchaser of the raiyati interest dispossesses that or another raiyat, Act. 3 does not apply to a suit by the dispossessed raiyat to recover the holding and some of the language used in the judgments in these cases supports the contention of the respondents in the case now before us. But the actual decisions in those: cases do not cover the present case and I am not prepared to extend those decisions to the present case.

The other learned Judge who was a member on the same Bench, Mullick, J. by way of distinguishing the cases of the Calcutta High Court dealt with by Chamier C.J. observed as follows:

With regard to that class of cases which have sought to exclude from the operation of Schedule 3, ousters by a landlord acting under the authority of a Civil Court decree and in the capacity of an auction-purchaser, the principle on which they may be distinguished is that, the facts in each of those cases show that the tenancy was at an end and that there was no relationship of landlord and tenant at the time of the ouster.

The ratio of the decision, therefore, consisted in that the tenancy must not have been at an end and that there must have been in existence relationship of landlord and tenant at the time of the ouster. In my judgment, therefore, Article 8 is not available to the appellants of this Court They are merely claimants of the tenancy right howsoever they might have acquired the same. The plaintiffs claimed as raiyats, the defendant-appellants also claimed as raiyats and both: claimed the tenancy under the same landlord, I have no hesitation, in my mind, that the special rule of limitation enacted in Article 3, Schedule 3, Bihar Tenancy Act does not apply to such a case.

There is another aspect of this case which also points to the same conclusion. The landlord, defendant 3, pleaded that he treated the holding as abandoned u/s 87 of the Act, by the original tenant Manbodh Koeri who became traceless shortly after the record of rights of the year 1911 in which he had been recorded as a raiyat and that this was about 20 years ago. Against that the finding of the, Courts below is that the plaintiffs have been in possession as raiyats for about thirty years, that is to say, for more then 12 years before the suit. This means that after the landlord treated the holding as abandoned and either he re-entered upon or acquired the right to re-enter on the land, the plaintiffs have by adverse possession acquired raiyati right against the landlord and the same has been ratified by grant of a rent receipt to the plaintiffs. No further act of dispossession is alleged by the landlord. Therefore, the dispossession that took place on 17th October 1938, can, by no stretch of imagination, be held as dispossession by the landlord. His (landlord''s) case of continuous possession since he treated the holding as abandoned has not been accepted by either of the Courts below.

For the reasons stated above, I would hold that the appeal has no merits and must be dismissed with costs.

Manohar Lall Ag. C.J.

I agree. In the words of Sir Lawrence Jenkins in a well-known oass the doctrine of constructive dispossession by the landlord must not be pushed 1,00 far. In each case the Court of fact must decide whether the landlord had a direct hand in the dispossession and not remotely.